Sound Of Silence

The #MeToo movement has brought powerful men to justice around the world — except in Australia, where our strict defamation laws make it tough for sexual harassment victims to speak out. Is it time for change?asks KIRSTIE CLEMENTS

- Kirstie Clements

IMAGINE YOU HAVE BEEN SEXUALLY HARASSED. The situation is serious enough that you feel compelled to speak out — to assert yourself, to confront the perpetrator, to alert others to the predator, and to try to minimise the likelihood that it will happen to someone else. Then realise the person you are accusing may hold all the cards legally — the accused can cry defamation and the burden of proof is entirely on you. If you have deep pockets and powerful connections, then the legal fight may be worth having, but for many victims of harassment, Australian defamation laws are ominous and silencing.

Compare them to the laws in the US, which places most of the legal burden on the person who has ostensibly been defamed — the accused must prove that the allegations are false. But in Australia, “the burden shifts very quickly to the defendant,” says Julie Robb, partner at Banki Haddock Fiora, a Sydney-based law firm that handles a large number of defamation cases. “The plaintiff only has to prove that something damaging to their reputation was said about them to a third party — or something a ‘reasonable person’ would think was meant by what was said. It’s then up to the alleged defamer to defend themselves.”

It isn’t easy to fight a defamation case. Defences, says Robb, are “most commonly on the basis that the offending meanings are true, or are an honestly held opinion. Although they might sound straightforward, these defences are highly technical, so the focus of the case shifts from the person claiming their reputation has been damaged to the alleged defamer.”